State v. White

Decision Date27 September 1995
Docket NumberNo. 18460,18460
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. Gary Duwayne WHITE, Sr., Defendant and Appellant.
CourtSouth Dakota Supreme Court

Mark Barnett, Attorney General, Gary Campbell, Assistant Attorney General, Pierre, for plaintiff and appellee.

Vicki L. Tucek, Aberdeen, for defendant and appellant.

KONENKAMP, Justice.

Defendant appeals his convictions for felony murder, burglary, and rape. We affirm.

FACTS

Antionette "Toni" Deibert, age fifty-six, was found dead in her bedroom at her home in Aberdeen. The cause of death was an acute cerebral hemorrhage resulting from a ruptured "berry" aneurysm. Death occurred sometime after 9:00 p.m. on Friday, June 26, 1992, the last time her father spoke to her, and 8:00 a.m. the next morning. After police accumulated substantial inculpatory facts against him, White eventually admitted to being with Deibert, but he denied causing her death. He challenges the trial court's evidentiary rulings and the sufficiency of the evidence to convict him. We summarize the facts most favorable to the verdicts. State v. Hage, 532 N.W.2d 406, 408 (S.D.1995).

Toni Deibert's father had been waiting to see her all day on Sunday, June 28--it was his seventy-ninth birthday. At 9:15 p.m. he finally went to her home to check on her. He found the screen door unlocked, which was unusual, but the inner door was locked. After entering with his key, he noticed a family picture on the floor and dirty dishes in the kitchen sink. Her home had always been immaculate. A plaque that had been hanging on the wall, lay on the floor. In her upstairs bedroom, he found her body, partially nude, sprawled on the floor at the foot of her bed, her nightgown pushed up around her shoulders, a blouse covering her face. The bedroom was in disarray: the bedspread, sheet, fitted sheet, and pillows had been removed from the bed and were on the floor, some with blood stains. Part of the bedding covered the pillows. A yellow disposable lighter lay in the middle of her bare mattress. (The deceased was a non-smoker.) Clothes, including a white skirt with a blood stain and a dress still on a hanger, littered the floor. Items on a table and dresser had been knocked over. The telephone was disconnected and dismantled; the handset was under the bed. A damp blue skirt and flowered house coat were found rolled up under an end table at the foot of her bed. Curiously, a small stick was found wrapped in these clothes.

Deibert had been a devout Catholic. Following the loss of her son who was killed in a 1988 car accident, her religious faith only deepened. She attended Mass daily at Sacred Heart Church, belonged to a bible study group, and worked with the church evangelism team, going door to door to win souls. On the day her body was discovered investigators noticed a large amount of devotional materials in her home. Her pastor, Father Geditz, characterized her as a "good lady that would help others out. She was a holy lady." Deibert was known for her willingness to give counsel to her fellow FMC employees and others in need.

Suspicion focused on Defendant, Gary White, a married FMC employee, after Father Rader, a priest at Deibert's church, told authorities that an inebriated White had accosted him outside the church three weeks earlier, questioning him about Deibert, talking about how he was a friend of Deibert's deceased son, and claiming to have killed people in Vietnam. Aberdeen police interviewed Deibert's co-workers at the FMC plant. FMC employees reported how White over the past seven years routinely showed up uninvited at their homes at any hour of the day or night, usually intoxicated, sometimes ruminating about wartime experiences in Vietnam. (He never served there.) He usually succeeded in talking his way inside. On occasion, he would obtain entry even when no one was at home. For the most part these visits were harmless, but some women he visited found him intimidating. Deborah Breese, a recipient of several of White's surprise visits, once offered him a ride to get him out of her house. She told the jury that while he rode in the backseat of her car, he was "calling me horrible names. He was slamming his fist into the roof of my car, into the doors, kicking the back of my seat. Yelling and screaming in my ear." Six FMC employees testified at trial about his persistent unexpected visits and, in fact, a former plant manager testified he had reprimanded White on the matter and placed a memo about it in his file. Deibert was aware of White's well-known habit of uninvited visits.

Investigators interviewed White several times; each time his version of events contained new discrepancies. At first, he stated the only thing he knew about Deibert was that she worked at FMC in the office and that he may have spoken to her on the phone at work but would not have recognized her. Yet less than twenty-four hours before her death, he had been seen speaking to her at a work-related meeting. He had also attended her son's funeral and told others about how sad she looked. Furthermore, he worked with her at FMC from a time when the company had only a handful of employees. Later White admitted knowing her, saying he lied because he was nervous about the "suspicious circumstances" surrounding Deibert's death. He also admitted to a detective that he recently lost his cigarette lighter. Investigators later learned White was reputed to carry a small twig, a "medicine stick."

Aberdeen police were able to piece together White's movements on June 26. Most of the evening he drank at various places. Sometime that night while in a taxi, White was in Deibert's neighborhood with a friend. He pointed in the general direction of Deibert's house and told the cab driver, "I know a woman down there." White drank at a bar until closing time at 2:00 a.m. He could not consistently account for his whereabouts after that time.

On July 28, 1992, an autopsy report revealed seminal fluid had been found in Deibert's vagina. DNA evidence linked the fluid to White, prompting him to later stipulate at trial to his presence in Deibert's home in the early hours of June 27 and to having had sexual intercourse with her that night. He claimed it was consensual. The experts agreed there was a "very high probability" that sexual intercourse, consensual or otherwise, caused her death. Though medical evidence established that sexual intercourse occurred while she was alive, Deibert's body had postmortem abrasions on the left side of her face, shoulder, neck, right groin area, and left knee. Two pathologists believed these abrasions could be consistent with someone positioning her body in an attempt at rectal or vaginal intercourse from behind.

On May 3, 1993 White was indicted by a Brown County Grand Jury on four counts: Count I, First Degree Murder (Felony Murder) in violation of SDCL 22-16-4, alleging he effected Deibert's death while perpetrating a rape; Count II, Second Degree Rape in violation of SDCL 22-22-1(2); Count III, First Degree Burglary in violation of SDCL 22-32-1; and alternatively, Count IV, Second Degree Burglary in violation of SDCL 22-32-3.

Prior to his trial for the Deibert homicide, White pleaded guilty to raping C.G., a sixty-three year-old woman. The State moved to admit evidence concerning this rape, as well as his uninvited visits to the homes of co-workers. By memorandum opinion incorporated into specific findings of fact and conclusions of law, the trial court found these prior acts admissible. Over White's objection, C.G. testified at trial how she was alone at home on July 17, 1992 (three weeks after Deibert's death), when a man she later identified as White knocked at her back door. He claimed he was out of gas and asked to use the telephone. She let him in. When she realized he was only pretending to use the phone, she ran out. He chased after her and she was able to get back inside and lock him out. He broke in, knocked her unconscious, then when she awoke he locked the door and ordered her into the living room. He told her he liked women in dresses and demanded she put one on. She refused. He ripped off her clothes. After removing the cushions from a couch and placing them on the floor, he had her cover them with a sheet because he did not want to get them dirty. He unsuccessfully attempted sex in several positions, including approaching her from behind: C.G. testified he "ordered me to get down on my knees. And I had to bend down with my chest and head on the floor." Then he had her lie on her back on the cushions where he raped her. She got dressed. Later, he made her undress again except for her shirt and had her lie back on the cushions to be raped again. Over the course of these violent acts he repeatedly threatened to kill her and her husband when the husband returned home. C.G. complied with his demands for an ashtray, water, and pop, but could not provide cigarettes because she did not smoke. When he appeared to have fallen asleep, she remained immobile, too afraid to use the phone to call for help or to attempt escape. An hour and a half after the ordeal began, he left.

White did not testify, but the theory his attorneys offered the jury was that White and Deibert had a sexual affair on the night she died. His attorneys emphasized that Deibert and White were acquainted with each other through work; they had been seen talking together at a work-related meeting earlier in the day; there was no forced entry into Deibert's home; no valuables were taken; the blood stains could have occurred during sex; and medical experts agreed the ruptured aneurysm could have been triggered merely from the usual exertion of sexual intercourse. The State argued that all the circumstances signified a violent event and that a sexual liaison with White considering Deibert's religious convictions was highly improbable, especially as not one witness could...

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